No. 96-3118

Arnold F. Hohn, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. United States of America, * * [PUBLISHED] Appellee. *

Submitted: September 13, 1996 Filed: November 4, 1996

Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM. The petit ioner in this case, unsuccessful in his effort to have his sentence set aside under 28 U.S.C. § 2255, seeks review in this court

. Pe titioner's appeal, however, will not lie unless we issue him a certif icate of appealability, and such a certificate is not availabl e unless the petitioner makes a "substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2).
The petitioner complained to the district court that at his tri al the jury instructions dealing with what it means to use a firearm under 1 8 U.S.C. § 924(c)(1) did not conform to the princi ples outlined in Bailey v. Unit ed States , 116 S. Ct. 501 (1995). It seems to us that under thes e circum stances a certificate cannot issue, because the petitioner is no t making a

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constitutional claim: He is making a claim to a federal statutory right. Bailey did no more th an interpret a statute, and an incorrect application of a statute by a district court, or any other c ourt, does not violate the Constitution. The Constitution does not guarant ee that judges will always be right. It does guarantee, it is true, that persons accused of crimes will receive due process; but the petitioner makes no due process clai m with respect to the trial judge's actions, and trial errors hardly eve r rise to the level of a due process violation in any case.
United States v. Liguori , 438 F.2d 663 (2d Cir. 1971), on which Judge McMillian relies in his dissenting opinion, is not to the contrary. The predicate for that case was that the Supreme Court had on constitutional grounds invalidated certain statutory presumptio ns, see id. at 666-67, and the petitioners were claiming that the statute under which they wer e convicted was invalid because it contained an unconstitutional presumption

. See id. at 665. There is no such claim here. The petitioner does no t mainta in that § 924(c)(1) is unconstitutional or that it wa s unconstitutionally applied to him. He maintains only that the statute was wrongly applied to him.
For the foregoing reasons, we deny the certificate.
McMILLIAN, Circuit Judge, dissenting.

Arnold F. Hohn appeals from the district court’s dismissal wit h prejudice of his 28 U.S.C. § 2255 motion claimin g the benefit of Bailey v. United States , 116 S. Ct. 501 (1995). Section 10 2 of the Antiterrorism and Effective Death Penal ty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, amended 28 U.S.C. § 2253(c) to require a “substantial showing of the denia l of a constitutional right” before a certificate of appealability may issue

. The court denies Hohn a certificate. I must respectfully dissent.

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Background

After a confidential informer told police Hohn was a high-leve l methamphetamine dealer, they investigated and ob tained a no-knock warrant. When the police arrested Hohn in his living room, they found one gram of methamphetamine in his wallet. They also went to the kitchen where the y found 15.8 grams of methamphetamine, three loaded pistols approximately on e foot from the drug, and another firearm. In Hohn’s bedroom the polic e found 3 .1 grams of methamphetamine in a cigarette package and anothe r loaded pistol approximately two feet from the pa ckage. Finally, in another bedro omthey found drug paraphernalia and a gun case with shotguns an d rifles. Cindy Vandry arrived at the house during execution of the warrant. She had twice purchased methamphetamine from Hohn at his home, and on thos e occasions she had observed “a substantial amount of currency in th e bedroom.”

The gover nment charged Hohn with possession of methamphetamine with intent to distribute it, using and carrying fifteen firearms in relation to the m ethamphetamine offense, and being a felon in possession o f firear ms. He stood trial, admitted possession of some of th e met hamphetamine, admitted he owned the firearms as an avid gunsmith an d hun ter, disputed the police version of the location of some of th e firearms, and testifi ed he believed he could legally possess the firearms because his attorney had told him that his 1974 juvenile conviction fo r malicious destruction of property did not count as an adult felony.
At trial, counsel urged substitution of “for the purpose of” inplace of “available to aid in the commission of” in th e verdict director for the firearms “use” charge. The jury convicted Hohn on all counts. He did not raise the instructional issue in his pre- Bailey appeal. This cour t affirmed. United States v. Hohn , 8 F.3d 1301 (8th Cir. 1993).

### -4- In his § 2255 motion, Hohn argued: (1) his conduct was not a violation of 18 U.S.C. § 924(c)(1) as interprete d by Bailey ; a fundamental miscarriage of justic e would result unless the court addressed the issue; (3) he should not be penalized for not raising the issue on direct appeal because h e relied on years of Eighth Circuit precedent; (4) denial of a remedy would show “a lack of due process in the judicial system,” quoting United States v. Loschiavo , 531 F.2d 659, 666 (2d Cir. 1976) (affirmin g vacati on of conviction on change-in-law ground not raised on direc t appeal); and (5) he was prejudiced by the jury instruction that said n o affirmative firearms use was required but that availability of a firearm was adequate for a guilty verdict.

The government responded that Bailey did not aid Hohn becaus e eviden ce supported a carrying conviction. It admitted the verdic t directing instruction was erroneous under Bailey , and Hohn was not carryin g
a firearm when officers executed the warrant. It argued, however, that th e kitche n firearms, “within arm's reach of the methamphetamine,” were i n holsters and supported the inference that at some time Hohn “entered his residence and placed his belongings, which included the methamphetamine an d firearms onto the counter.” The government concluded it was obvious Hohn had carried the firearms during his drug trafficking activities, and the instructional error was harmless.

In reply , Hohn argued that the instruction was error under Bailey , citin g United States v. Webster , 84 F.3d 1056, 1060, 1065-66 (8th Cir

. 1996) (permitting brief on Bailey after initial submission of direct appea l and reversing because plain error in pre- Bailey jury instruction permitted convic tion for “mere presence and ready availability” of firearm wher e defendant admitted purchase of a firearm for his protection). He also urge d that the government’s methamphetamine-within-arm's-reach-of-firearm s argument was insufficient under United States v. White , 81 F.3d 80,

### For that reason, I also disagree with the court’s holdin g 1 

### that Bailey

challenges cannot be raised in a § 2255 motion after a plea of guilty. Bousley v. Bro oks , No. 95-2687, 1996 WL 560214, at *3-4 & nn.2-4 (8th Cir. Oct. 3 , 1996). The better position is, in my opinion, United States v. Barnhardt , 93 F.3d 706, 708-09 (10th Cir. 1996) (applying Bailey retroactively in second § 2255 motion after defendant pleaded guilty) (collecting Bailey cases).

-5- 83 (8th Cir. 1996) (affirming “carrying” conviction on direct appeal and sayin g government must prove that the defendant bore the firearm on o r about his person during and in relation to a drug trafficking offenses), quoting Bailey ’s language, “the inert presence o f a firearm, without more, is not en ough to trigger § 924(c)(1).” 116 S. Ct. at 508 (discussin g differ ent meanings of “use” - active employment, storage, placement fo r active use). He included a copy of Cynthia Vandr y’s testimony that she saw the rifles in the gun case but no handguns when she was at Hohn’s house.

The di strict court noted Hohn had not raised the Bailey claim o n direct appeal, found he had waived it, and dismissed the § 2255 motion wit h prejudice, quoting Un ited States v. McKinney , 79 F.3d 105 (8th Cir. 1996) (2-1 d ecision) (holding Bailey issue waived on direct appeal becaus e McKinney did not challenge previous cases, object to the instruction, or argue issue in opening brief).

Discussion

I dissent because I believe the Due Process Clause of the Fift h Ame ndment does not permit federal convictions for conduct that does no t violate a federal statute. 1

Congress must define federal criminal offenses. United States v

. Huds on , 11 U.S. (7 Cranch) 32, 33 (1812). Judicial construction of a statute “is an authoritative statement of what t he statute meant before as well as after the decision of the case giving rise

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to that construction.” Rivers v. Roadway Express, Inc. , 511 U.S. 298, 312

- 13 (1994) ( Rivers ) (footnote omitted). Under th ese two principles, courts have granted post-conviction relief after changes in the law. See, e.g., Davis v. United States , 417 U.S. 333, 346-47 (1974) (§ 2255 proper when la w changes s o that conviction and punishment are for act the law no longe r makes criminal) (change in interpretation of selective service regulation) ; United States v. Dash ney , 52 F.3d 298, 299 (10th Cir. 1995) (applying new interpretation of “financial structuring” offense in § 2255 action after defendant had served sentence to prevent complet e miscarriage of justice); Dalton v. United Stat es , 862 F.2d 1307, 1310 (8th Cir. 1988) (finding new interpretation of mail fraud statute applicable but affirming because no prejudice shown under standard that trial error worked to § 2255 movant’s

“ actual and substantial disadvantage, infecting [the] entire trial wit h
error of constitutional dimensions,” citing United States v. Frady , 45 6 U.S. 152, 170 (1982) (emphasis in original)); Ingber v. Enzor , 841 F.2 d 450, 45 4-55 (2d Cir. 1988) (applying new interpretation of mail frau d statute in § 2255 action and excusing failure to raise the claim unde r earlier interpretation).

The S econd Circuit invoked constitutional principles when i t confronted four § 2255 challenges to drug convictions in the wake of the Supreme Court’s inval idation of statutory presumptions. The court relied
on

the sim ple and universal rule that a judgment in a crimina l cas e in which the prosecution has offered and the recor d dis closes no proof whatever of various elements of the crim e cha rged has a fatal constitutional taint for lack of du e process of law. . . . W e must examine the principles involved in the constitutional ruling under consideration and decid e whether, upon "considerations of convenience, of utility, and of th e deepest sentiments of justice," the judgments o f conviction were so "tainted by some fundamental unfairnes s wit hin the orbit of constitutional law" that we cannot allo w them to stand.

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Unit ed States v. Liguori , 438 F.2d 663, 669 (2d Cir. 1971) (interna l citation omitted).

In post- Bailey § 2255 cases, the issue is not advance notice tha t conduct is criminal (the familiar void-for-vagueness claim), but delayed notice that conduct is not criminal (change-of-law claim under River s ration ale). Because Bailey represents such a clear break with preceden t regarding the definition of "use" under § 924(c)(1), Hohn had cause fo r faili ng to appeal the denial of his objection to the verdict director

. United States v. Wiley , 922 F. Supp. 1405, 1411 (D. Minn. 1996) (Magnuson, C.J.); se e also Dyer v. United States , 23 F.3d 1421, 1423-24 (8th Cir. ) (rejecting change of law in another circuit as cause), cert. denied , 115 S. Ct. 136 (1994); Dalton v. United States , 862 F.2d at 1310 (finding caus e after new interpretation of mail fraud statute).

Conclusion

I conclud e that depriving persons of the benefit of the delaye d notice that conduct is innocent violates Due Process by toleratin g convictions for conduct that was never criminal. Under that proposition, a post- Bailey

§ 2255 motion presents a constitut ional question as required by amende d § 2253(c)(2). I also conclude Hohn’s case presents a “substantial showing of the denial of a constitutional right.” Accordingly , I would grant a certificate of appealability.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.